Ante Gotovina’s defence challenges particular jurisdiction of ICTY Appeal Chamber

General Ante Gotovina

Croatian general Mladen Markac’s defence has joined in the motion filed Friday August 10 by Croatian general Ante Gotovina’s defence that challenges the jurisdiction of the ICTY Appeal Chamber in considering alternate modes of liability. Gotovina’s defence submits that the question of alternate modes of liability directed by the Appeal Chamber to the prosecutor cannot be considered by the Chamber as the matters contained in the question are not a subject of the Appeal.

The Motion filed concludes:

33.           The Appeals Chamber should find that, on the issue of the Appellant’s responsibility under the alternate modes of liability:

  1.    The Appeals Chamber lacks jurisdiction pursuant to Article 25 to consider the matter or, if it has jurisdiction, it could not exercise it in compliance with the fundamental rights of the accused and must therefore refrain from doing so; and
  2.  The Trial Chamber’s Judgement on alternate modes of liability (i.e. its Judgement not to render a reasoned opinion) is now final and non-appealable as a result of the Prosecutor’s failure to appeal the matter.

34.           In the alternative, the Appeals Chamber should find that the Prosecutor has waived any issue concerning the alternate modes of liability by failing to appeal the Trial Chamber’s Judgement, and is also estopped by the doctrine of res judicata from pursuing the matter further.

In other words, Gotovina’s defence says that appeal proceedings are not a retrial and that only matters appealed against must be considered by the appeal.

That’s how the normal world of the judiciary works, let’s see what happens in the ICTY.

Gotovina’s defence also said that if the Appeals Chamber considered alternative modes of liability, it would bring into question the appellants’ rights in the appellate proceedings, as the Appeals Chamber, by adopting a decision on the two generals’ alternative liability, would put itself in the function of a trial chamber, which would deprive the generals of the right to appeal.

Therefore, Gotovina’s defence submits, the Appeals Chamber should find that it is not competent for the matter of the two generals’ alternative modes of liability, and that the trial chamber’s decision not to rule on alternative liability is final and that it cannot be appealed because the prosecution failed to do so within the deadlines envisaged, Gotovina’s defence said.

The ICTY prosecution was required to submit by 10 August its answer to the questions of alternate modes of liability for the Croatian Generals were the Chamber to find against the April 2011 Trial Chamber’s judgment of joint criminal enterprise in Operation Storm. The prosecutor’s answers have not yet been made public by the court. Ina Vukic, Prof. (Zgb); B.A., M.A..Ps. (Syd)


  1. Thank you Ina for the update….

  2. Reblogged this on Eyes of the Mind.

  3. So, help me understand…no one at the ICTY, including administers, judges and prosecutors know the rules of the court, or about standard legal procedures? Are you kidding me?

  4. Michael Silovic says:

    The prosecution has no leg to stand on and they are trying everything possible. The generals attorney’s are correct that the ICTY can not accept this and I do not see them doing so.They know as does everyone else that the generals should never have been sent to the Hague to begin with and damn all those in the Croatian government that had anything to do with it. They should be considered traitors to our country for betraying the generals.Once the generals are freed the truth and ALL OF THE TRUTH will be told and I pity the British and American government for the shame that will be bestowed upon them along with their puppets in the EU.

    • I think that Croatian government had no alternative but to let the ICTY bring in the generals since Croatian parliament passed the law of cooperation with the tribunal. However, you are so right Michael the Croatian government should be ashamed and damned for allowing the charges to proceed and for not doing enough in defending the generals in the process. I.e., before the charges were laid there was a period of ICTY investigation and we know that many including ex-president Stjepan Mesic ordered the handover of state confidential documents selectively, without handing over those that qualify actions. That’s how the charges came about – in cahoots with Carla del Ponte and company. So the persons in the government leadership over last 10 years should be hanged out to dry.

      • Michael silovic says:

        Regardless of the outcome and I am hoping the generals are set freed quickly a documentary of their story and the truth of the war and trial will need to be made and distributed world wide to correct history. It is important that the younger generation of Croatian children and the world know the truth of all of our heroes and the sacrifices of all of those who lives are lost and of their families who suffer to this day because of their loss of sons and daughters. The documentary also will be clear on all of those who have betrayed our country and it’s people so we do not ever have to forget who they were. This includes everyone and every government involved and whether or not national security issues are at stake should not be a big deal,it is time the whole truth be told regardless of who and what countries reputations are damaged.The homeland war story is not completely told as of yet only a small part of it.

      • Yes

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